The Peninsula Airport Commission is asking a judge to toss a defamation lawsuit filed last month by the former head of the Newport News/Williamsburg International Airport.

“The allegations in the Complaint do not establish a cause of action” to move forward, an airport attorney wrote in urging a judge to throw out the case.

Former executive director Ken Spirito — who led the airport for eight years before being fired last May — contended in a Jan. 20 lawsuit that current and past employees and an airport board member defamed his character when they exchanged text messages about him shredding documents at the airport early last year.

Those exchanges, Spirito contends, intentionally gave “the false implication” that he was shredding evidence related to the Virginia Department of Transportation’s audit into a $5 million loan to People Express Airlines almost three years earlier.

Spirito contends he was the only person who consistently tried to shield the airport from financial losses related to that loan. But because of the “reckless” and “negligent” statements — and the fact that they ended up in the state’s audit and on the front pages of the Daily Press — his reputation in the community and a once-promising aviation career have been destroyed, the complaint says.

Filed in Williamsburg/James City Circuit Court by attorneys David Littel and Kellam Parks, the lawsuit asks for “compensatory damages of $3 million and punitive damages of $1 million” for each defamatory statement.

But in a response filed Friday, a Peninsula Airport Commission attorney says the case should be thrown out.

As the airport’s executive director, Spirito “is a public official who must both plead and prove clear and convincing evidence of constitutional actual malice,” said the response, filed by Conrad M. Shumadine, an attorney with Willcox & Savage who is representing the board and the employees.

Under U.S. Supreme Court decisions, the legal bar to defame a public official is higher than for an ordinary person. To defame a public official, a defendant must either know the statement was false or show a “reckless disregard” for the truth.

But “it would be impossible” for Spirito to allege actual malice in this case, Shumadine wrote, “since he admits shredding documents during an audit,” and the employees never pretended to know what was being being destroyed. Spirito “cannot complain about innuendo from the true fact that he engaged in document shredding during a VDOT audit,” Shumadine wrote.

The airport’s financial practices came under scrutiny in early 2017 after the Daily Press reported that the commission had quietly guaranteed the $5 million loan from TowneBank to the airline in 2014. After People Express collapsed, the commission used $4.5 million in taxpayer dollars to pay off the remaining debt.

The state soon launched an investigation into that loan.

As “the targeting of (Spirito) in the press became widely known,” Spirito’s lawsuit says, “certain disgruntled PAC employees began a digital whispering campaign of unfounded innuendo that (Spirito) was shredding documentary evidence relevant to the People Express investigation.”

One morning in early March — about five weeks after the state audit began — Ortiz texted her boss, Ford, expressing surprise that Spirito was shredding documents, according to text messages uncovered by the state audit.

“Wow Ken is shredding shredding shredding,” Ortiz wrote at 8:28 a.m. on March 2.

Ford texted back: “Unbelievable!”

Ortiz: “Seems kind of weird.”

Ford: “This is getting out of hand!”

Later that afternoon, the Peninsula Airport Commission put Spirito on paid administrative leave, then fired him in May. (Though the document shredding was referenced in the VDOT audit, it wasn’t listed as one of the reasons Spirito was fired.)

The VDOT audit also references a second account of document shredding.

CAPTION

Mariners' Museum archaeological conservator Erik Farrell talks about the process that will be used to drill out the "concretion" from the inside of the USS Monitor's Dahlgren guns. Over it's time in at the bottom of the ocean the cannon filled with a mixture of iron corrosion, calcium deposits and sand that hardened into a concrete-like substance.

Mariners' Museum archaeological conservator Erik Farrell talks about the process that will be used to drill out the "concretion" from the inside of the USS Monitor's Dahlgren guns. Over it's time in at the bottom of the ocean the cannon filled with a mixture of iron corrosion, calcium deposits and sand that hardened into a concrete-like substance.

CAPTION

Mariners' Museum archaeological conservator Erik Farrell talks about the process that will be used to drill out the "concretion" from the inside of the USS Monitor's Dahlgren guns. Over it's time in at the bottom of the ocean the cannon filled with a mixture of iron corrosion, calcium deposits and sand that hardened into a concrete-like substance.

Mariners' Museum archaeological conservator Erik Farrell talks about the process that will be used to drill out the "concretion" from the inside of the USS Monitor's Dahlgren guns. Over it's time in at the bottom of the ocean the cannon filled with a mixture of iron corrosion, calcium deposits and sand that hardened into a concrete-like substance.

CAPTION

This Day in History: Lincoln Delivers the Gettysburg Address November 19, 1863 In just 272 words.

This Day in History: Lincoln Delivers the Gettysburg Address November 19, 1863 In just 272 words.

"Black Panther" costume designer Ruth Carter breaks down the meaning behind the major colors used for the different tribes in the Marvel movie.

"Black Panther" costume designer Ruth Carter breaks down the meaning behind the major colors used for the different tribes in the Marvel movie.

Documents show that Thomas — a former airport janitorial supervisor — sent a Facebook message to Scott, with the councilwoman saying she received it on March 17.

“I know about the paper shredding at the airport!” Thomas wrote in the message at 1:15 p.m. He left his number and asked Scott to call him.

Scott replied immediately: “Thanks for sharing! Will call you later!”

Scott said she did not call Thomas back, but referred his message to state auditors.

Thomas messaged Scott again in April, audit documents show: “I told you … that I (know) about the paper shredding a couple of weeks ago,” he wrote. “I saw (airport marketing director Jessica Wharton) and Ken coming from the shredder when I walked in the office after 8 p.m. Then was let go about 2 weeks later without a write-up.”

Spirito contends that with the messages involving Ortiz and Ford, he was merely shredding “hard copies of some old, duplicate airline presentations,” which remained on PAC computers after the shredding. “There was absolutely nothing improper about shredding these documents,” the complaint says.

But Thomas’ shredding story, the complaint said, was a “complete fabrication,” adding that the janitorial supervisor was fired “for making inappropriate comments to an airline employee.”

“Thomas was a disgruntled employee at the time that he sent these messages,” the complaint said.

A hearing has not yet been scheduled on the airport commission’s motion to toss the case.